Tuesday, Oct 18 2011
• 11 a.m. (ET)

Lawrence Lessig: “Republic, Lost”

Recent polls show growing numbers of Americans have lost confidence in government. Occupy Wall Street protestors say they are against corporate greed and economic disparity, and their movement is rapidly spreading. In a letter to the protestors, Harvard law professor Lawrence Lessig urges them to unite Democrats, Republicans and Independants against what he sees as the root problem: a political system where only 1 percent of americans fund 99 percent of campaigns. He offers a plan to stop the corrupting influence of money on government, including the possibility of a constitutional convention.

Guests

Lawrence Lessig
Professor of law at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University.

Read an Excerpt

Excerpt from Lawrence Lessig’s “Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It.” All rights reserved. Copyright 2011 by Lawrence Lessig. Reprinted here by permission of Twelve/Hachette Book Group:

Transcript

11:06:53

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. There's a feeling today among too many Americans that we might not make it. That's how Harvard Law Mr. Lawrence Lessig begins his new book titled "Republic, Lost." He argues the root cause of the nation's problems is the corrupting influence of money on politics.

11:07:25

MS. DIANE REHMLawrence Lessig joins me in the studio. His new book is titled "Republic, Lost: How Money Corrupts Congress and a Plan to Stop It." Do join us, 800-433-8850. Send us your e-mail to drshow@wamu.org Lawrence Lessig is professor of law at Harvard University Law School and director of the Center for Ethics at Harvard. Good morning to you, sir, it's good to see you.

11:08:08

MR. LAWRENCE LESSIGGood morning, it's great to be back.

11:08:09

REHMYou recently a published a letter in the Huffington Post to The Occupy Wall Street Protesters, what did you say to them?

11:08:22

LESSIGWell, I was trying to argue and hopefully persuade the protesters to make sure that their protest speaks to the wider audience that could be behind them. I fear that the protest is focused too much as if it's a fight against the rich when it needs to be a fight against those who use their privilege to corrupt the system and the system which has produced the regulation which led to the collapse on Wall Street and the collapse of our economy.

11:08:58

LESSIGSo Wall Street is a perfect place for their protest because Wall Street is an extraordinary location of influence being used both before 2008 to buy de-regulation, but more dramatically after 2008, to avoid re-regulation. So it's a great place to focus their protest but we need to have a protest that could bring in the left and the right and I think the focus on the corrupting influence of money in our system is a chant which people on the left and the right could join.

11:09:33

REHMAnd right now you feel it's going in just one direction instead of as it should be more broadly?

11:09:44

LESSIGI think it's wonderfully ambiguous right now. I think it's an extraordinary movement and I've seen. I visited the Wall Street protest. I spent a couple of days going to that and I'm actually doing a teach-in here on the K Street protest this afternoon so I'm not criticizing at this point but I'm trying to get people to recognize that though many of us are liberal and I consider myself a liberal, the place where we could find agreement is not convincing everybody of our liberal views.

11:10:20

LESSIGThe place we can find agreement is about convincing people that this system that we have right now for governing our nation has been corrupted so we don't have to have a common end but we do have a common enemy I think and the common enemy is a system for funding campaigns that has led this Congress to be deeply corrupted from what our framers expected they would be.

11:10:42

REHMYou call this dependence corruption, explain what you mean.

11:10:48

LESSIGWell when people think about corruption, they typically think of Rob Blagojevich or Randy "Duke" Cunningham kind of corruption, a quid pro quo violation of the law. And that, of course, is an important kind of corruption, but actually our Congress has almost none of that. This is probably the cleanest Congress in the history of Congresses. These are not criminals that we're talking about. These are decent people who come to Washington for the right reason, whether you agree with their reason or not.

11:11:14

LESSIGThe kind of corruption that we have in Washington is the wrong dependency that they've developed. The framers of our Constitution in giving us a representative democracy imagined as Federalist 52 put it, a branch that would be dependent upon the people alone. But our Congress is not dependent upon the people alone. The people who spend 30 to 70 percent of their time raising money obviously have a different kind of dependency, a dependency upon the funders and the funders are not the people.

11:11:44

LESSIGYou know I think that The Occupy Wall Street people need to adjust their signs. It's not the 99 percent, it's the 99.95 percent of Americans who never max out in their contributions to even one campaign who we need to be worrying about because, of course, candidates pay attention to the people who max out to their campaign. And .05 percent of Americans max out to anybody in a political campaign.

11:12:10

LESSIGSo when you spend your life raising money from the funders and the funders represent .05 percent of America, obviously you're going to bend your attention and bend your policy in a way that focuses on them and not on the people and that is a kind of corruption.

11:12:27

REHMWhat about the recent Supreme Court decision on this very issue?

11:12:32

LESSIGSo the Supreme Court in two decisions in the last three years, Citizens United and then the Arizona case just this last term, has made it clear that Congress can't limit independent expenditures of either individuals or corporations independent of political campaigns. And they've also limited the way in which public funding might remedy some of the problems that are created by privately-funded elections.

11:12:57

LESSIGSo in the Arizona case, they struck down a triggering mechanism which allowed you to get more public funding depending on what your opponent was actually spending. But both of them are troubling decisions, but I still think that the solution to the problem that we face right now, we could enact without actually amending the Constitution.

11:13:19

LESSIGThe independent expenditure one is really an extraordinarily difficult problem because as we're seeing the Supreme Court assumed that all these independent expenditures were going to be transparent but as Stephen Colbert has so wonderfully taught the nation through his Super PACs, in fact there is no transparency requirement in these Super PACs and some of the largest Super PACs have extraordinary amounts of effectively anonymous contributions that are being made to these Super PACs and these Super PACs are ostensibly independent of campaigns but so cumbersome is the independence that Karl Rove's Super PAC has now asked the FEC to relax some of the independence requirements because it's too difficult for them to maintain their effective independence.

11:14:06

LESSIGSo I think everybody is recognizing that these are essentially arms of campaigns and as they are arms of campaigns they are raising precisely the corruption concern that the Supreme Court denied that they would raise.

11:14:18

REHMAren't you talking about Capitalism as a whole and as we know it?

11:14:28

LESSIGNo, I'm not. I'm a son of a Capitalist. I'm a believer in free markets. I'm not against Capitalism, even though I understand some of my brothers occupying Wall Street and occupying K Street are. I'm an opponent of crony-Capitalism. I'm an opponent of a Capitalism that uses its power not to innovate in the marketplace, but to come to Washington and buy special privilege and protection from competition in the marketplace.

11:14:57

LESSIGI stand with Libertarian economists like, such as Luigi Zingales from the University of Chicago who with a co-author wrote a book "Saving Capitalism from the Capitalists" which is emphasizing the way in which every generation of successful Capitalists who made their wealth in a free market eventually turn around to Washington and try to get from Washington protection from the next generation of successful Capitalists.

11:15:23

LESSIGSo the problems we have right now in my view are not about Capitalism, it's about Capitalism corrupted and it's about that corruption infecting the political system so they depend upon each other so tightly that the real competitors, the real free marketers out there, can't even compete against the burden that's been imposed upon them by this corruption.

11:15:45

REHMSo your solution might be public funding of political campaigns?

11:15:53

LESSIGRight, although of a particular kind so, you know, we could think of a family of solutions out there as the small dollar-funded election solutions. The kind of solution Arizona, red-state Arizona has, red/blue-state Maine has and blue-state Connecticut has. My particular version of these small dollar-funded elections says that every one of us gives at least $50 to the federal Treasury. So take that first $50 and turn it into a democracy voucher and then say to candidates that you can accept, you can get the democracy voucher from anybody in the country so long as you agree to take only democracy vouchers plus contributions of up to $100. Take $100 from Buddy Roemer, my hero in the Republican campaign.

11:16:43

LESSIGSo that means that candidates could opt into a system where they take no more than $100 from any individual, no PAC money and they get these democracy vouchers to fund their campaigns, now $50 to every voter is $6 billion in an election cycle.

11:17:00

REHMPlenty...

11:17:00

LESSIGYeah, the last Congressional election had $1.8 billion so this is two and half times the amount from the last Congressional election. And so it's real money and if done right candidates would have a real reason to opt into the system where they could get these democracy vouchers rather than spending all their time sucking up to the .05 percent of America that gives them the max contributions to fund their campaigns.

11:17:24

REHMYou must have been disappointed then when initially there was talk that what President Obama then candidate Obama was planning was to take public funding and then changed his mind.

11:17:44

LESSIGI was disappointed then. I was much more disappointed after the election. You know, look I was a friend of Obama and he was a colleague of mine at Chicago. I supported every single one of his campaigns from the very beginning even the losing campaigns. But I think the only reason the world had for supporting Barack Obama over Hillary Clinton was that Barack Obama said his reason for running was to take up the fight to change the way Washington works, constantly focused on the way in which this system had been corrupted and that that corruption was what we had to change.

11:18:21

LESSIGHillary Clinton to her credit said look, it's not my job to fix the horse, it's my job to get on the horse and run it as far as I can. So when Americans chose Barack versus Hillary it was about this issue. But when he became president all of this reform disappeared and he became the president of the status quo.

11:18:39

REHMLawrence Lessig, he is professor of law at Harvard University. His new book is titled, "Republic, Lost: How Money Corrupts Congress and a Plan to Stop It."

11:20:04

REHMWelcome back. We're going to open the phones shortly for Professor of Law Lawrence Lessig of Harvard University. His new book, which on the cover has the United States capitol and its dome covered in dollar bills. His new book is titled "Republic, Lost: How Money Corrupts Congress and a Plan to Stop It." When you think about money and it's corrupting process, does it defeat both the left and the right or does it work to the benefit of one versus the other?

11:20:53

LESSIGOne of the most proud moments in the writing of this book was when a colleague of mine read it and he said, you sound like a right-winger in writing the book,. And I was proud of that because I think the most important message I'm trying to convey is that this is not an issue that the left alone should care about. Of course the left should care about it.

11:21:15

LESSIGWe've seen in this administration how issues that are particularly sensitive to the left, global warming or healthcare, have been affected by this. But it's the right as well that needs to worry about this issue, the right that fundamentally has policy objectives that cannot be achieved so long as we have this system of funding campaigns.

11:21:34

LESSIGSo, for example, think about the recent proposal by Herman Cain for a 999 tax plan. The biggest thing that would do is to completely destroy the industry inside of Washington that essentially sells special tax benefits in exchange for enormous amount of lobbying dollars in campaign contributions. The Wall Street Journal in December of last year had this piece about the explosion of these temporary tax provisions, as they called them. These extenders that require repeated reauthorization every couple years.

11:22:09

LESSIGAnd they were puzzled. Why is there this business of temporary tax provisions? Well, the answer is when you have a temporary tax benefit, as that's expiring the congressman has somebody to call and say, you need that research and development tax credit. We're gonna need a lot of support down here to make sure that we get it. And so there's an industry designed to flush money into the system so that if you're a tax reformer and you want simple taxes or flat taxes or whatever you want, you're not gonna get it so long as congress depends upon the complexity as a means to fund their campaigns.

11:22:44

REHMYou talked before the break about President Obama, what he said he wanted to do, what he has or has not been able to do since taking office. Is it because exactly as you describe, the system itself is so entrenched that no one can go up against it and clearly make a change without, as you suggest, a constitutional convention?

11:23:26

LESSIGWell, I think four years ago I would have said no one could come up against it. On January 20, 2009 I thought there was one person who could come up against it. I thought Obama was that person. I thought the nation was united in a way that it hadn't been in such a long time and reform was at the core of that union. We have to remember Obama was the first Tea Party member. He was the reformer in chief. And when he spoke on January 20 there was a sense that he could do anything.

11:23:59

LESSIGBut what's absolutely clear, and you get this from talking to people inside the administration and from reading about the administration as it developed, they had no plan for how they were going to, as Obama said, quote, "take up the fight" to change the Washington (word?) . They found themselves in the middle of a crisis. And indeed one senior administration official said to me, wow, what could we do? We were in the middle of a crisis.

11:24:22

LESSIGBut the point was it is only in the middle of a crisis that you can get the nation to focus on the need to fundamentally reform the system. It's told to me that Obama, when he got his first budget, there were some 7,000 earmarks in the budget. And Obama's first instinct was to say I want to veto this bill. And then his lobbyists told him, no, no, no. You can't veto this bill. You can't burn the bridges with the Democratic Congress.

11:24:46

LESSIGIf he had vetoed that bill there would've been a radically different trajectory for this administration. He would've been understood as the man who is standing up to this corrupt system. And the enemy would not have been the Republicans. The enemy would've been this corruption. And I think the nation -- as we're seeing the nation has enormous energy to rally around real change -- would have rallied around that president to the end of ending that corruption.

11:25:09

REHMHave you been able to speak with him personally?

11:25:15

LESSIGI have not spoken to him personally since...

11:25:16

REHM...since...

11:25:18

LESSIG...since Elena Kagan was nominated to the Supreme Court. I was a friend of Elena's so I got to watch that process and saw him briefly in that process. But I have not spoken to him about this. After I wrote a piece in The Nation which originally was going to be titled "The Tyranny of Tiny Minds," but people thought that was a little bit too aggressive, many of my friends in the administration didn't consider me a friend any more. And so I've not been part of what happened in the administration, even though I was a strong supporter and campaigner for Obama before.

11:25:49

REHMIs it too late?

11:25:51

LESSIGYou know, I would love to figure out a way that this man could reclaim the mantle of reform. I would love to find a way to imagine him thinking to himself, this is the thing I promised to do and this is the thing we have to do. But I frankly don't see the path. I think that, you know, he is Lucy, we are Charlie Brown. Once again the ball has been pulled and we have fallen flat on our back.

11:26:14

REHMHow do you think our representatives and senators actually spend their days?

11:26:25

LESSIGI think they spend -- and we don't have good numbers on this and I read every single estimate to try to calculate this -- but they spend an enormous amount of their time focused on this problem, how do I raise the money I need, not just for my own campaign, but to pay the taxes that I have to pay to my party so that the party has enough money to try to win back control of Congress.

11:26:46

LESSIGSo the estimates are anywhere from 30 to 70 percent of their time in this bizarre like ritual where they race up to Capitol Hill in response to this bell, like a recess bell from elementary school, to vote in a way that, you know, procedural votes. They don't know exactly what they're voting on until they get there and their staffer tells them what to do. And then they race off the Hill into these cubbyholes -- cubbies where they sit there with headsets and a speaker system set up so that they can race through the calls of people they've never even met to try to raise money from them to fund their campaigns. It's crazy making.

11:27:27

LESSIGAnd, you know, if you compare what our Congress looks like today to what the framers envisioned and actually lived, where congressmen went to their -- they went to their desk. It's 10:00 in the morning and sat there for six hours listening to the debates of others deliberating. We don't have anything like that today. You know, you could look at our Congress compared to the British House of Commons. The British House of Commons looks a lot like what the framing looked like, right, where they actually argue and debate and deliberate. That's what we imagined a Congress for.

11:27:57

LESSIGThere's no reason to be sitting here in Washington if all you're doing is raising money so that you can get back to Washington.

11:28:03

REHMHow did you personally become so inspired to get this kind of message out?

11:28:13

LESSIGWell, I had spent many years working in the area of internet and copyright policy. The first time I was on your show was talking about a book in that area. And what I found after spending about ten years working in this field was that though people were getting the point, parents and educators and business people were getting the point about the need for a different kind of copyright policy, I'd come to Washington and it was as if nobody had ever even heard the other side of the issue. And, you know, this was one of those moments where I realized I wasn't as smart as I thought I was. I recognized, well, it's obvious nobody here hears the issue because this side of the issue doesn't have all the money in the world behind it.

11:28:52

LESSIGAnd so, again, a moment of recognizing not so smart as you thought, I recognized it wasn't just esoteric questions like copyright policy. But it was fundamental questions like global warming or every single issue where congress can't get to the right issue -- answer to the question because it's blocked by all the money in the world that wants to stop it or preserve the status quo in one particular way or the other.

11:29:17

LESSIGSo I thought, look, I have tenure at a great university, I've written five books about this. I think an academic should throw away all his intellectual capital every ten years and start all over again. So I said I was going to throw it away and start all over again here.

11:29:31

REHMYou know, we were just in the earlier program talking about this tar sands pipeline from Canada to Mexico. The money that's going into that is one of those issues that makes you wonder whether the people in Nebraska whose land this could cross, the people in Nebraska beneath whose aquifer could be direly affected, whether they will have a voice.

11:30:16

LESSIGThat's right. And the way you put it was precisely right. The money makes us wonder, the money makes us skeptical about whether the answer is the right answer. Look, we're not all experts, right. We don't have time to focus on hard public policy questions. We hire our representatives to do that for us. And when you start seeing the representatives dancing with people who have enormous amounts of money that they're trying to use to influence them one way or the other, you can't help but wonder.

11:30:45

LESSIGSo 75 percent of Americans in a poll that was conducted for this book believe money buys results in congress. A little bit more Democrats than Republicans but I guarantee you when the Republicans -- when the Democrats controlled congress more Republicans than Democrats. And that leads -- that view leads to an extraordinary lack of confidence in this institution. So whether it's 11 percent or 12 percent, 12 percent of the Americans have confidence in congress.

11:31:10

LESSIGThere were more people who believed in the British crown at the time of the revolution than who believe in our congress today. At what point does an institution have to declare political bankruptcy? Because I think if there is such a line 12 percent crosses it many times over.

11:31:26

REHMDo you really believe it's time to call for a constitutional convention?

11:31:33

LESSIGI think that the framers envisioned exactly this problem. They thought if congress is the problem we need to give a way for us to amend the constitution without depending on congress. So Article 5 says the states can call for a convention to propose amendments and congress can propose amendments on its own. It's clear this congress is not going to change itself, not going to cure itself. It needs an intervention like an alcoholic needs an intervention. And I think the convention could be that intervention.

11:32:03

REHMLawrence Lessig of Harvard University, his new book titled "Republic, Lost." And you're listening to "The Diane Rehm Show." It's time to open the phones, 800-433-8850. Let's go first to Lawrenceville, N.J. Good morning, Richard. You're on the air.

11:32:31

RICHARDYes, hi, Diane. Nice to talk to you.

11:32:32

REHMThank you.

11:32:33

RICHARDAnd Mr. Lessig also. I saw him the other night on TV. Very impressed with what he had to say. I am part of a small grassroots organization here in New Jersey called Citizens Against Campaign Excesses. And we are trying to get together a program whereby we get taxpayer money. We figure it'd be a dollar a year from all taxpayers to support a political cable channel that would also include a website.

11:33:01

RICHARDAnd it would essentially cut the politicians off at the knees, all political campaigning. That includes from these outside groups, the packs and so on would be put onto the political cable channel. And people would be able to see the politicians present their points of view, their platforms, their debates by way of the political cable channel and the website. And we just think also that it would give the electorate more of a chance to get less apathetic towards voting because they would realize that the politicians would really then really be able to represent their -- the constituents needs and not the needs of the deep pockets.

11:33:49

REHMWhat do you think of that idea?

11:33:51

LESSIGWell, so it's similar to what most mature democracies do in setting up easy access of candidates to the public through essentially free media. And that's important. And I think it would be a fine part of any package of reform. But I think that it doesn't quite yet get to what the core problem here is, which is if candidates are in the business of needing to raise enormous amounts of money, regardless of the fact that they also get free TV, they still would be competing in raising enormous amounts of money. They are going to become dependent upon their funders.

11:34:26

LESSIGAnd so long as the funders are not the people, as long as the funders who have .05 percent of us rather than all of us, they will steer their policy away from the policy that reflects the people. And that will continue to drive the cynicism that I think is at the core of this corruption.

11:34:43

REHMHere's an e-mail from Denisha in Florida who says, "I agree with your guest about the (word?) of the Occupy Wall Street movement. It is appealing to a broad spectrum of the American public. I feel this particular moment in time is going to result in a reconstruction of the American political system."

11:35:13

LESSIGLet's hope so. It's going to take a lot more than we've seen so far. And it's going to take a lot more bridge building to the other side. So that I think the occupy movements have got to begin to invite the grassroots Tea Party people into their midst, and the Coffee Party people into their midst so that we increasingly see this union of concern around an issue everybody can agree upon.

11:35:38

LESSIGSo I don't want people to compromise their values. I'm a liberal. I believe in certain things very strongly and I don't want to give those views up. But I do think we need to agree about the structure of the system. And the structure of the system right now is corrupt and both sides should be able to see that corruption.

11:35:52

REHMTo Indianapolis, good morning, Thomas.

11:35:57

THOMASHello, thank you. I had an even more radical proposal which is to outlaw any kind of funding altogether and just give people access -- equal access to a format where they go -- where they either debate and whittle down the field that way and just have equal access for all candidates and no financing.

11:36:26

LESSIGSo that is radical. It would require a pretty radical constitutional amendment. It's similar to my friend Dylan Ratigan's proposal that he's been pushing on his show, the-get-money-out proposal where he has more than 200,000 people now who have signed a petition for an amendment to the constitution that bands any contributions by anybody period. And I guess I find myself a little bit as a small C conservative here which is what's the smallest change we need to make to fix the system. Recognizing there's many more radical changes we could make that might also fix the system.

11:37:33

LESSIGSo I think if we're going to amend the constitution the amendment should just have three parts. Number one, it should say publically -- public elections must be publically funded. Number two, it should say contributions shall be limited to $100 or the equivalent of $100. And number three, it should say congress has the power to limit but not to ban independent expenditures by corporations or by individuals. So I think it's important not to try to ban anybody from participating but it's also important to have a system where the participation doesn't dominate the process.

11:37:34

11:40:04

REHMAnd welcome back. Lawrence Lessig is here in the studio. He's professor of law at Harvard University. His new book, titled, "Republic, Lost: How Money Corrupts Congress -- and a Plan to Stop It". Here's an email from Howard, who says, wouldn't it be an easier solution to simply amend the law that allows corporations to be treated as citizens with legal rights? Doing so would take away the majority of their lobbying power and remove a great deal of corruptive influence in Washington.

11:40:50

LESSIGSo there's a view of many in the reform movement that corporations being treated as persons, not as United States citizens, and the Citizens United decision, which recognized their right to spend unlimited amounts of money from their corporate treasury on independent political expenditures is somehow a source of the problem in our democracy, that if we could go back to January 20, 2010, the day before Citizens United was decided, we would have a perfectly well-functioning democracy.

11:41:23

LESSIGBut, you know, my view is Jan. 20, 2010 our democracy was already broken. And it was not broken simply because corporations are treated as persons. Maybe that's part of it, but it wouldn't be fixed immediately by declaring that corporations are not persons or by declaring that corporations don't have a right to engage in independent political speech. I actually believe that the decision was right in the -- to the extent that it allowed that non-profit corporation to use its corporate funds to support the -- their movie about Hillary Clinton.

11:41:56

LESSIGBut it was wrong to the extent it sounded like it means that there's no justification for Congress to regulate, except if Congress is regulating traditional quid pro quo bribery. I think that was the error in Citizens United. And I'm not -- I would be happy to have citizenship as, you know, the corporate status as persons revoked, in the context of an amendment that did those other three things. but I think that if you did those other three things, have publicly funded elections, have a limitation on contributions and have the power to limit independent expenditures, the additional limitation on corporations as being persons wouldn't actually be necessary.

11:42:33

REHMAnd Randy posts this message on Facebook, "ask your guest why he believes the Occupy Wall Street movement is so wonderful, exciting as compared to the Tea Party Movement. Was -- is he, like so many other liberals, against the Tea Party, yet for this group? Why are both groups not wonderful when they both want to limit something? The Tea Party wants limited government, the Wall Street bunch wants to limit business.

11:43:11

LESSIGYeah, so I'm a Populist. And that means that I was extremely excited by the Populist Tea Party Movement, just like I’m excited by the Populist Occupy Wall Street/Occupy K Street movement. That doesn't mean that I'm a supporter of the substantive policy positions that many in the Tea Party advance. It means that I support the idea of people standing up and reclaiming their power over government.

11:43:35

LESSIGSo I've actually gone to a Tea Party convention. Two-thousand people, extraordinarily-committed citizens, not talking about gay rights or the right to -- of a woman to choose to terminate a pregnancy, but talking about how do we get our government back under control. And that was a conversation I was eager to have with people because I agree. That is a fundamental concern. Now, I think that we should be able to agree on what is the root cause of this underlying problem. I mean, Thoreau is my sacred text here.

11:44:06

LESSIGAnd he writes, for every thousand hacking at the branches of evil there's one striking at the root. And I think we need more root strikers here. And I think the Tea Party, the Populist Tea Party, not the Washington Tea Party, but, you know, my favorite Tea Party brand is the Tea Party patriots, which were really a Populist movement, not Koch brother funded. They are a large movement of Tea Party activists who are really decentralized Populists, in a sense. I think those people should resonate with this concern just as much as I hope that the Occupy Wall Street people will.

11:44:37

REHMAnd here's a caller in Newport Township, Ill. Good morning, Jim.

11:44:43

JIMDr. Lessig, I'd like to hear some discussion about how campaign funds are utilized to preserve the Democratic-Republican system and drown out everyone else. This prevents us joining the modern world by adopting a run-off election system. And this intellectual wasteland is devoid of alternative ideas and directions as long as this political duopoly is preserved.

11:45:14

LESSIGYeah, I think this is an extremely interesting question. And, actually, this year we're seeing enormous progress by the Americans Elect Project, which is, I think, gonna succeed in having a simple way for an alternative to the two party candidates to be on every single ballot in the 2012 election. And they have an enormous amount of resources behind them pushing for this opportunity to, as they see it, break this stranglehold of the Democrat and Republicans.

11:45:43

LESSIGI guess I -- this is, again, in the kind of barrel of great ideas that it would be good for us to get to in the reform agenda that is the needed reform agenda for our republic. But it, again, doesn't feel to me like it's the first issue we've gotta get to. So I would love to see a wider diversity of issues be able to be presented inside of our Congress and inside of our campaigns for president, but I think the core thing that's gotta happen first is that we have presidents and Congress who are, to steal Buddy Roemer's slogan, free to lead, free to be independent of the special interests that fund them enough so that they can decide what to do on the basis of their principles or on the basis of what they think is right.

11:46:25

REHMAnd to Linda, in Falls Church, Va. Good morning.

11:46:30

LINDAGood morning. I was concerned when your -- when the professor said that he supported Barack Obama over Hillary because he thought that he would really make this change. And I supported Barack over Hillary because I thought he could win. And what I think is important is that we realize the political game that it's not easy to win. And there are very strong forces opposing liberal views and democratic ideas, such as the environment and cutting down spending on wars and Medicare and all these things that are important. And right now, the jobs bill. And after two years the Republicans got into Congress. So I don't think it's fair to blame Barack Obama for all this. I think he's doing a great job. I think he's on the case of everything he can possibly do.

11:47:22

LESSIGI don't blame Barack Obama for the difficulty for playing the game that he's chosen to play. I blame him for choosing to play this game. When he runs a campaign that says that the reason I'm running -- here's the quote, right. "The reason I’m running for president is to challenge that system." And by that system he's talking about the system which is run by, as he called it, the lobbyists, which both Republican and Democratic administrations have allowed to rule Washington.

11:47:53

LESSIGLike here, you know, here's another quote, "if we do not change our politics, if we do not fundamentally change the way Washington works then the problems we've been talking about for the last generation will be the same ones that haunt us for generations to come." I could go through pages and pages of his characterizing his campaign about this reform. And I can tell you, Republicans galore who have come to me as I've been out talking about this saying, I don't believe in what Obama wanted to do, with respect to global warming or healthcare, but I believed in him because I thought he was gonna change the system.

11:48:24

LESSIGAnd the decision not even to take up that fight, I think is the point of fair criticism. It's not that he's not been liberal enough. I didn't think he was liberal. He never was a liberal. It was that he didn't -- he was too conventional. He was a conventional president when he came to office promising to be a transformative president.

11:48:43

REHMAt the same time he did run into a stone wall of Republicans in Congress.

11:48:53

LESSIGI think part of the stone wall was a wall that he constructed by defining the fight as a fight between Democrats and Republicans. When America was listening for a fight about reform versus the status quo and the status quo were problems of the Democrats, as well as the Republicans. So by defining himself as the big brother Democrat and we were gonna take on the Republicans, half of America was against him from the very beginning. But if he had defined his fight as a fight against the status quo interests that are blocking reform I think he would have seen a wide range of people rallying to his side.

11:49:25

REHMHere's an email from Eunice, who says, "I just finished, 'That Used To Be Us' by Thomas Freedman. Question, what do you think of his solution, i.e. a third party candidate?"

11:49:43

LESSIGSo again, I'm not against the idea of third parties, but if it's still within the system where every candidate has got to be beholden to their funders and the funders are not the people, then we're gonna produce the same status-quo-preserving regime that we've got right now. And status quo, both from the standpoint of not having reform and from the standpoint -- for those people on the right -- of not being able to shrink the size of government or simplify the taxes or get spending under control. All the things that people on the right are concerned about.

11:50:16

REHMAnd you're listening to "The Diane Rehm Show." Let's go now to White Pigeon, Michigan. Good morning, Brian. You're on the air.

11:50:30

BRIANYeah, thanks for taking my call.

11:50:31

REHMSure.

11:50:31

BRIANYes. I wanna talk about the crony capitalism, but first this despair between Tea Party and the Wall Street. Actually, I don't think there's -- they can come together on much of anything because the, you know, the Beck inspired Tea Party says that there's nothing wrong with Wall Street, that, you know, that taking away all the regulations and they're fine. And this is exact opposite of what the Wall Street people are saying. So I don't see as there's a whole lot of coordination there.

11:50:57

BRIANBut my bigger point was, you know, you talk about the difference between capitalism and crony capitalism. And basically it's like the, you know, the old story of the scorpion ran across the river on the back of the fox who let him and then he stings him halfway across. And he asks why you gonna do it? We're both gonna die. And he says, well, you knew my nature. And isn't that the nature that with -- as long as business and our whole capitalist system is not focused on a society-centered ideal, that this inevitable to happen.

11:51:28

BRIANAnd there's not really much you can do about it until you've changed the mindset of people of, you know, getting away from this idea that, you know, power is everything and the, you know, that, ultimately, corrupts to this point. And I'll take my question off the air.

11:51:43

LESSIGSo I agree we need to recognize the nature of business and the nature of capitalists. And their nature is to make money. And they make money by innovating and finding great products that people wanna buy. I think that's fine. I don't think, though, that the nature of democratic politics is that we have to allow that influence to infect our political system. We can design systems that protect the representatives from that influence in a way that allows them to be independent.

11:52:09

LESSIGLook, the framers of our constitution were obsessed with this kind of protection. My favorite clause in the constitution limits the ability of members of Congress to get gifts from kings or princes or any foreign state. Right? Why were they doing that? Because they didn't want them to develop the wrong kind of dependency on people who were not their constituents. And we can do the same kind of creative thinking about how to limit the influence that people who are not the people have on this Congress.

11:52:37

LESSIGAnd if we restored ourselves to a framing conception, which is a Congress dependent upon the people alone and build rules to assure that dependency, I think we would make a lot of progress in keeping capitalism in its right place and keeping democracy in a very different place.

11:52:52

REHMHere is a very different perspective. It was posted on our website. It says, "Wall Street is run by people. Corporations are owned by and employ people. You claim you want the people to make decisions, but what you really want is for the right people to make the decisions for you. I, for one, would much rather have the successful people in our country have a louder voice. The last thing we need to succeed as a nation is to have the lowest common denominator of society speak the loudest. They've proven their value to the greater good by what? Voting for and taking advantage of social welfare?"

11:53:49

LESSIGSo I don't know any right-thinking capitalist who can look at the mess that Wall Street created through the gambling, which they took inside of the dumbest form of socialism ever invented by man, where we socialized the risk and privatized the benefits. And look at that system and say, this is something to be proud of. You wanna be proud of capitalism, go out to the West coast, live in Silicon Valley the way I did. Talk to the people who are really inventing great, amazing products that make people stand up in awe.

11:54:19

LESSIGLook, you could not have an occupied Silicon Valley movement. You would not have people standing in front of Apple computer and saying, yeah, Steve Jobs needs to be punished for his greatness. Nobody would do that because we recognize the genius and the brilliance in what is happening out there. When you focus on Wall Street, you're focusing on a system that took advantage of the corruption of our government to build for themselves a gambling scene where they could gamble and they could get the upside and we would pay the downside. And what's worse, you know, it's one thing to say that up until 2008, they were allowed to deregulate, because that was the (word?) .

11:54:55

LESSIGThe astonishing thing is that after 2008, where every independent economists looks at this and says, no, no, no. There's something wrong with this system where banks are so big that they cannot fail, yet they're allowed to gamble with our money. After 2008, Wall Street was able to blackmail Congress enough to block any fundamental reform of this system. This is not anything any capitalist should defend. And no capitalist -- no self-respecting capitalist whose paycheck doesn't come from that system, that I know of, does defend it.

11:55:23

REHMWhat is the one step you would like to see President Obama take now?

11:55:30

LESSIGI want him to reclaim the statement.

11:55:33

REHMHow?

11:55:33

LESSIGTo take the -- up the fight to change the way Washington works, to focus us, again, on what is the core problem here. The core problem is a Congress that cannot legislate independent of special-interest money. Now, whether he'll be credible or not, I don't know. And I'm not even sure this is the best way for him to win his campaign, but I personally want a candidate who says we need a president free to lead. That's Roemer's claim, but nobody takes him seriously because he's promised to take only $100 from any individual and take now pack money. But I want a president who leads us to the place that we could reform this system. And it may be that this president could do it. I'd love to see him try.

11:56:10

REHMIs it too late?

11:56:11

LESSIGIt might be too late for him. It might be the place that people just would not hear it. They would not believe it. They would not take it as credible. And that's the, you know, the astonishing sadness of this. And on Jan. 20, 2009, everybody would have believed it. And today I don't know if they would.

11:56:27

REHMLawrence Lessig, he is professor of law at Harvard University. He's also director of the Edmond Safra Foundation Center for Ethics there. His new book is titled, "Republic, Lost: How Money Corrupts Congress -- and a Plan to Stop It." Thank you so much.

11:56:54

LESSIGThank you.

11:56:55

REHMThanks for listening all. I’m Diane Rehm.

11:56:58

ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture, Monique Nazareth, Lisa Dunn and Nikki Jecks. The engineer is Aaron Stamper. A.C. Valdez answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org and we are on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

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